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United States v. Robinson

United States District Court, D. Minnesota

August 23, 2017

United States of America, Respondent-Plaintiff,
Tony Terrell Robinson, Petitioner-Defendant. Civil No. 17-1726 (DWF)




         This matter is before the Court on Petitioner-Defendant Tony Terrell Robinson's (“Petitioner-Defendant”) pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. Nos. 121 & 128.) The United States of America (the “Government”) opposes Petitioner-Defendant's motion. (Doc. Nos. 123 & 129.)


         Petitioner-Defendant alleges that his counsel was ineffective, asserting six grounds for relief. And, as observed by the Government, Petitioner-Defendant has added a seventh claim, which the Government asserts is untimely, pursuant to § 2255, in which he asserts that his trial counsel provided ineffective assistance of counsel because he allegedly advised him to seek release on bond, pending trial, rather than agree to remain in custody. (Doc. No. 128 at 3-4.) Petitioner-Defendant, in effect, claims that by being on bond, he failed to receive credit for jail time he spent in state custody, and that he would have received such credit had he remained in federal custody on August 18, 2014.

         First, Petitioner-Defendant argues that his trial counsel was ineffective because he did not raise a “disparity issue between” his sentence and co-defendant Tanka Tetzlaff's sentence. Secondly, Petitioner-Defendant asserts that his trial attorney failed to argue that his role assessment was overstated because he was “not in fact a leader but more of a manager.” (Doc. No. 121 at 2.) Thirdly, Petitioner-Defendant asserts that his trial counsel was ineffective because he failed to ask for a continuance of the sentencing hearing in order to take advantage of guideline amendments that took effect on November 1, 2015. Fourthly, Petitioner-Defendant asserts that his trial counsel was ineffective because he was “ill during the time he was representing” Petitioner-Defendant and, as a result, “was not in his right mind to be representing a criminal defendant.” Fifthly, in his petition to this Court, Petitioner-Defendant asserts that his trial counsel failed to object to the Government's intended loss argument. As to Petitioner-Defendant's appellate counsel, he asserts one claim of ineffective assistance by his appellate counsel by asserting that he should have alleged that his trial attorney provided ineffective assistance by not seeking a continuance of the sentencing hearing. For the reasons discussed below, the Court denies Petitioner-Defendant's motion.


         In August 2014, Petitioner-Defendant was indicted on Count 1 of the indictment with conspiring to file false tax refund claims with the IRS. In Counts 2 through 11 of the indictment, Petitioner-Defendant was charged with filing false tax refund claims.

         As the Government has accurately explained in their submissions to the Court, and as the record will reflect, Petitioner-Defendant, while in prison at the Minnesota Correctional Facility (“MCF”) in Faribault, he, along with a co-conspirator, Tanka Tetzlaff, operated an extensive tax fraud scheme by which they and other prisoners filed false income tax returns, fraudulently applying for tax refunds. See January 21, 2015 Robinson Presentence Investigation Report (“PSR”) ¶¶ 9-10, 19-22; Doc. No. 85 § I(A). Petitioner-Defendant did not object to this factual account set forth in the PSR, as noted. Until Petitioner-Defendant was released in 2012, he continued to run the conspiracy from MCF-Faribault and from another prison, MCF-Stillwater. (PSR ¶¶ 14, 16, 21.) Petitioner-Defendant, along with co-defendant Tetzlaff, submitted over 500 tax returns for over a hundred inmates, making over $830, 000 of false claims for tax refunds. PSR ¶¶ 9, 23. Petitioner-Defendant was responsible for all of these false claims and co-defendant Tetzlaff was responsible for about $694, 000 of them. (PSR ¶ 23.) Petitioner-Defendant, along with Tetzlaff and other co-conspirators succeeded in stealing over $197, 000 from the Internal Revenue Service (“IRS”) through their tax fraud scheme. (PSR ¶ 23.)

         During the time this conspiracy existed and the crimes Petitioner-Defendant pled guilty to were occurring, he was concurrently serving three separate Minnesota state felony sentences. In October 2008, Petitioner-Defendant was convicted of first-degree criminal sexual conduct and sentenced to 91 months' imprisonment for those offenses which involved his niece while she was 7 to 12 years old. In March 2009, he was convicted of financial transaction fraud and sentenced to 15 months' imprisonment. Then, in April 2009, Petitioner-Defendant was convicted of identity theft and sentenced to one year and one day. (PSR ¶¶ 54-56.) On October 16, 2014, Petitioner-Defendant pled guilty pursuant to a plea agreement. He pled guilty to the conspiracy charge set forth in Count 1 and to the charge of filing a false claim with the IRS set forth in Count 3. Petitioner-Defendant and the Government, as part of the plea agreement, agreed to an adjusted total offense level of 23, which was based upon the base offense level of 20 for a tax loss between $500, 000 and $900, 000, along with a four-point role enhancement, a two-point enhancement for criminal livelihood, and a three-point reduction for acceptance of responsibility. (Doc. No. 50 ¶ 5.) The PSR came to the same conclusion, consistent with the specific terms of the plea agreement. (PSR ¶¶ 37-47.) Pursuant to the plea agreement, the parties believed that Petitioner-Defendant's criminal history category was a IV or V. The Probation Department found that Petitioner-Defendant had ten criminal history points which created a criminal history category of V, which was based upon three separate felony convictions and the fact that he committed the tax fraud offenses while serving his three felony sentences. (PSR ¶¶ 54-59.) At sentencing, Petitioner-Defendant argued that two of his felony convictions were related and his criminal history category should therefore be IV. Alternatively, Petitioner-Defendant argued to the Court and moved the Court to depart or vary downward based on an overstatement of his criminal history. (Doc. No. 79 at 2-4; 1/20/15 Robinson Sentencing Transcript (“Robinson ST”) 5-8, 9-11, 15-16, 32; U.S.S.G. § 4A1.3(b).) The Government opposed Petitioner-Defendant's motion to depart, but did agree that the Court could evaluate and take account of any overstated criminal history when it determined the sentence pursuant to the § 3553(a) factors. (Doc. No. 78 at 2-3; Robinson ST 9.)

         On January 20, 2015, this Court sentenced Petitioner-Defendant to a term of 84 months imprisonment, which was the bottom of the applicable guideline range. ST 43, 48; Doc. No. 84 at 2.

         Petitioner-Defendant appealed his sentence asserting four claims. First, he challenged this Court's denial of his motion for a downward departure based upon an overstatement of his criminal history. Second, Petitioner-Defendant asserted that this Court failed to consider the alleged overstatement of his criminal history as a factor pursuant to § 3553(a). Third, Petitioner-Defendant asserted that this Court erred by recommending that he be assigned to a prison with a Residential Drug Abuse program, as he had requested. And fourth, Petitioner-Defendant asserted that his bottom-of-the-guidelines sentence was substantively unreasonable. The Eighth Circuit Court of Appeals rejected his claims and affirmed this Court's decision in United States v. Robinson, 640 F. App'x 564, 566-67 (8th Cir. 2016) (per curiam; unreported). The Eighth Circuit Court of Appeals declined to consider Petitioner-Defendant's claim for ineffective assistance of counsel and affirmed the Court on all other issues raised by Petitioner-Defendant.


         I. Section 2255 Legal Standard

         As the Government has observed, Title 28, United States Code, Section 2255, provides that a prisoner “may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” In making such a motion, a § 2255 action requires a prisoner to show that he has the right to be released because:

[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. . . .

28 U.S.C. § 2255(a).

         It must be kept in mind that a § 2255 request for relief is extraordinary and “is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Thus, contrary to a number of Petitioner-Defendant's assertions which will be addressed below, ยง 2255 does not encompass all claimed errors in conviction and ...

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